Illinois Official Reports 

Appellate Court 

People v. Gayfield, 2014 IL App (4th) 120216-B

Appellate Court 

Caption 

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

J.W. GAYFIELD, Defendant-Appellant. 

District & No. Fourth District 

Docket No. 4-12-0216 

Rule 23 Order filed 

Modified opinion 

filed upon denial 

of rehearing 

March 5, 2014 

July 8, 2014 

Held 

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Defendant’s conviction for the Class 2 form of aggravated unlawful 

use of a weapon under section 24-1.6(a)(1), (a)(3)(A), (d) was void 

pursuant to Aguilar, notwithstanding the fact that Aguilar

“specifically limited” its holding to the Class 4 form of the offense, 

since both the Class 2 and Class 4 form of the offense require proof of 

the same elements. 

Decision Under 

Review 

Appeal from the Circuit Court of Champaign County, 

No. 11-CF-1816; the Hon. Thomas J. Difanis, Judge, presiding. 

Judgment Vacated. 
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Counsel on 

Appeal 

Michael J. Pelletier, Jacqueline L. Bullard, and Kelly M. Weston, all 

of State Appellate Defender’s Office, of Springfield, for appellant. 

Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J. 

Robinson, and David E. Mannchen, all of State’s Attorneys Appellate 

Prosecutor’s Office, of counsel), for the People. 

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion. 

Justices Pope and Knecht concurred in the judgment and opinion. 

 OPINION 

¶ 1 On January 11, 2012, a jury convicted defendant, J.W. Gayfield, of aggravated unlawful 

use of a weapon (AUUW) (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2 

offense based on a prior felony conviction. The trial court sentenced defendant to seven years 

in prison. Defendant appealed, arguing the prosecutor made improper remarks in his closing 

argument, thereby denying defendant a fair trial. On August 19, 2013, this court issued an 

order finding the prosecutor’s closing argument was not improper and affirming the trial 

court’s judgment. People v. Gayfield, 2013 IL App (4th) 120216-U. 

¶ 2 On August 26, 2013, defendant filed a petition for rehearing pursuant to Illinois Supreme 

Court Rule 367 (Ill. S. Ct. R. 367 (eff. Dec. 29, 2009)). For the first time, defendant asked this 

court to consider whether his conviction should be reversed, asserting the AUUW statute was 

unconstitutional. On September 9, 2013, this court denied defendant’s petition for rehearing. 

¶ 3 On October 9, 2013, defendant filed a motion for supervisory order in the Illinois Supreme 

Court, which the supreme court granted on November 6, 2013. People v. Gayfield, Nos. 

116726, 116728 (Ill. Nov. 6, 2013) (nonprecedential supervisory order directing vacatur of 

judgment and denial of petition for rehearing and reconsideration in light of People v. Aguilar, 

2013 IL 112116, 2 N.E.3d 321, and denying leave to appeal as moot). As a result, the supreme 

court directed this court to vacate our judgment in Gayfield, and our order denying the petition 

for rehearing, and to reconsider our judgment in light of Aguilar, to determine whether a 

different result was warranted. 

¶ 4 In accordance with the supreme court’s direction, we vacated our prior judgment and our 

order denying the petition for rehearing, and reconsidered our prior judgment in light of 

Aguilar. We again affirmed, finding that Aguilar did not change the result in this case. People 

v. Gayfield, 2014 IL App (4th) 120216-UB, ¶ 5. 

¶ 5 On March 25, 2014, defendant filed a petition for rehearing. We now modify our decision 

upon denial of defendant’s petition for rehearing. For the reasons set forth below, we vacate 

defendant’s Class 2 conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 

2010)). 
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¶ 6 I. BACKGROUND 

¶ 7 On November 3, 2011, the State charged defendant by information as an armed habitual 

criminal (720 ILCS 5/24-1.7(a)(1) (West 2010)) (count I). On January 4, 2012, the State 

charged defendant by information with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 

2010)) (count II), a Class 2 offense based on a prior felony conviction. The State later 

dismissed count I. 

¶ 8 At defendant’s January 2012 jury trial, Officer Dieter Rene Wissel of the Rantoul police 

department testified that, on November 2, 2011, at approximately 2 a.m., he was “running 

license plates” on Route 136 in Rantoul. Wissel testified he had “cause for concern” upon 

checking the license plate on a gray Honda Accord that he observed traveling approximately 

five miles per hour over the posted speed limit. Wissel initiated a traffic stop and contacted a 

sergeant regarding “officer safety concerns.” Wissel found defendant driving the vehicle and 

Walter Cunningham in the front passenger seat. According to Wissel, both defendant and 

Cunningham appeared “extremely nervous.” Upon request, defendant provided identification 

and Cunningham stated his name. Wissel returned to his squad car and ran a 

law-enforcement-agencies data system (LEADS) inquiry on both names. Wissel remained in 

his squad car until Officer Kyle Gregg and Sergeant Richard Welch, both of the Rantoul police 

department, arrived at the scene. 

¶ 9 Welch instructed Wissel and Gregg to secure the vehicle and check the occupants for 

weapons. Wissel performed a pat-down search of defendant, revealing a fully loaded 

semiautomatic pistol in his left chest pocket and 20 rounds of ammunition in a right front pants 

pocket. Welch testified that he saw Wissel remove the gun from “an inner pocket 

somewhere[;] I believe it was the jacket pocket or the shirt pocket.” 

¶ 10 Gregg testified that he was tasked with watching defendant’s passenger on November 2, 

2011. He assisted Wissel in placing handcuffs on defendant. Gregg observed the 

semiautomatic handgun after it had been removed from defendant and placed in the trunk of 

Wissel’s squad car. 

¶ 11 Cunningham testified on defendant’s behalf. Defendant is his nephew. Cunningham did 

not see defendant with a gun that night and did not see a gun in the vehicle. 

¶ 12 The jury found defendant guilty of AUUW. On January 24, 2012, defendant filed his 

posttrial motion arguing, in part, that the trial court erred “in overruling the Defendant’s 

objection to the State’s closing remarks.” On February 29, 2012, the trial court denied 

defendant’s posttrial motion and sentenced defendant to seven years in prison. 

¶ 13 As stated, defendant appealed and this court affirmed. Gayfield, 2013 IL App (4th) 

120216-U. On September 12, 2013, our supreme court determined section 24-1.6(a)(1), 

(a)(3)(A), (d) of the AUUW statute was unconstitutional on its face. Aguilar, 2013 IL 112116, 

¶ 22, 2 N.E.3d 321. On November 6, 2013, the supreme court issued a supervisory order 

directing this court to vacate our judgment in Gayfield, and our order denying the petition for 

rehearing, and to reconsider our judgment in light of Aguilar. People v. Gayfield, No. 116726, 

116728 (Ill. Nov. 6, 2013) (nonprecedential supervisory order on denial of leave to appeal). On 

December 19, 2013, our supreme court entered a modified opinion upon denial of the State’s 
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petition for rehearing in Aguilar. Aguilar, 2013 IL 112116, 2 N.E.3d 321. In the modified 

opinion, the court noted: 

 “In response to the State’s petition for rehearing in this case, we reiterate and 

emphasize that our finding of unconstitutionality in this decision is specifically limited 

to the Class 4 form of AUUW, as set forth in section 24-1.6(a)(1), (a)(3)(A), (d) of the 

AUUW statute. We make no finding, express or implied, with respect to the 

constitutionality or unconstitutionality of any other section or subsection of the AUUW 

statute.” Aguilar, 2013 IL 112116, ¶ 22 n.3, 2 N.E.3d 321. 

¶ 14 Upon reconsidering our original judgment in light of the modified decision in Aguilar, as 

directed by the supreme court, we determined Aguilar was inapplicable to the instant case, 

stating “the supreme court in Aguilar specifically limited its modified opinion to the Class 4 

form of AUUW,” whereas in this case, defendant was convicted of the Class 2 form of the 

offense. Gayfield, 2014 IL App (4th) 120216-UB, ¶ 17. 

¶ 15 On March 25, 2014, defendant filed a petition for rehearing, asserting “[i]n upholding [his] 

conviction, and thus the constitutionality[ ] of the ‘Class 2 form’ of aggravated unlawful use of 

a weapon, this [c]ourt impliedly [found] that felon status is an element and not a 

sentencing-enhancement factor. This holding is not dictated by *** Aguilar *** and is 

contrary to established Illinois Supreme Court law.” For the reasons set forth below, we 

modify our decision upon denial of rehearing and vacate defendant’s conviction. 

¶ 16 II. ANALYSIS 

¶ 17 A. AUUW Conviction 

¶ 18 We first reconsider whether our supreme court’s modified opinion in Aguilar renders his 

Class 2 conviction for AUUW void. In this case, the State charged defendant by information 

with AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2010)), a Class 2 offense based on 

a prior felony conviction. Section 24-1.6 of the AUUW statute in effect at the time of 

defendant’s November 2011 offense provides in part:

 “(a) A person commits the offense of aggravated unlawful use of a weapon when he 

or she knowingly: 

 (1) Carries on or about his or her person or in any vehicle or concealed on or 

about his or her person except when on his or her land or in his or her abode, legal 

dwelling, or fixed place of business, *** any pistol, revolver, stun gun or taser or 

other firearm; or 

 (2) Carries or possesses on or about his or her person, upon any public street, 

alley, or other public lands within the corporate limits of a city, village or 

incorporated town, except when an invitee thereon or therein, for the purpose of the 

display of such weapon or the lawful commerce in weapons, or except when on his 

or her own land or in his or her own abode, legal dwelling, or fixed place of 

business, *** any pistol, revolver, stun gun or taser or other firearm; and 

 (3) One of the following [eight] factors is present: 

 (A) the firearm possessed was uncased, loaded and immediately accessible 

at the time of the offense[.]” 720 ILCS 5/24-1.6 (West 2010). 
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Subsection (d) of the AUUW statute then provides the sentencing scheme that applies to a 

particular offender based on additional factors. That subsection provides, in relevant part, as 

follows: 

“(d) Sentence. 

 (1) Aggravated unlawful use of a weapon is a Class 4 felony; a second or 

subsequent offense is a Class 2 felony for which the person shall be sentenced to a term 

of imprisonment of not less than 3 years and not more than 7 years. 

 *** 

 (3) Aggravated unlawful use of a weapon by a person who has been previously 

convicted of a felony in this State or another jurisdiction is a Class 2 felony for which 

the person shall be sentenced to a term of imprisonment of not less than 3 years and not 

more than 7 years.” 720 ILCS 5/24-1.6 (West 2010). 

¶ 19 In Aguilar, the defendant was found guilty of the Class 4 offense of AUUW–because it was 

his first offense–and sentenced to 24 months’ probation. See Aguilar, 2013 IL 112116, ¶ 7, 2 

N.E.3d 321. Relying on Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012), our supreme court 

reversed the defendant’s conviction, holding that, “as the Seventh Circuit did in Moore, we 

here hold that, on its face, *** section 24-1.6(a)(1), (a)(3)(A), (d) [of the AUUW statute] 

violates the right to keep and bear arms, as guaranteed by the second amendment to the United 

States Constitution” because it “categorically prohibits the possession and use of an operable 

firearm for self-defense outside the home” and “amounts to a wholesale statutory ban on the 

exercise of a personal right that is specifically named in and guaranteed by the United States 

Constitution, as construed by the United States Supreme Court.” Aguilar, 2013 IL 112116, 

¶¶ 21-22, 2 N.E.3d 321. 

¶ 20 The supreme court subsequently modified its decision in Aguilar to hold only that “on its 

face, the Class 4 form of section 24-1.6(a)(1), (a)(3)(A), (d) violates the right to keep and bear 

arms.” (Emphasis added.) Id. ¶ 22, 2 N.E.3d 321. While the Aguilar court specified its 

modified decision “is specifically limited to the Class 4 form of AUUW,” it continued, “[w]e 

make no finding, express or implied, with respect to the constitutionality or unconstitutionality 

of any other section or subsection of the AUUW statute.” Id. ¶ 22 n.3, 2 N.E.3d 321. The 

supreme court otherwise left its original decision fundamentally unchanged. 

¶ 21 The modified decision in Aguilar was not unanimous. In her dissenting opinion, Chief

Justice Garman noted the issue raised by defendant on appeal was whether subsections (a)(1) 

and (a)(3)(A) of the AUUW statute–which when combined with subsection (a)(2) yield 18 

possible different offenses–were facially unconstitutional. Id. ¶¶ 34-35, 2 N.E.3d 321 

(Garman, C.J., dissenting). The State, however, in its petition for rehearing, “fundamentally 

redefined the issue” by arguing these sections were not facially unconstitutional because, 

pursuant to subsection (d) “which governs sentencing,” they could still be applied to felons. 

(Emphasis added.) Id. ¶¶ 33, 36, 2 N.E.3d 321 (Garman, C.J., dissenting). 

¶ 22 In her dissenting opinion, Justice Theis expressed concern that the defendant never raised 

the sentencing issue at all and that his argument that the AUUW statute was facially 

unconstitutional was “only dependent upon the elements of the offense,” not the class of 

felony. Id. ¶ 43, 2 N.E.3d 321 (Theis, J., dissenting). According to Justice Theis, the majority 

misinterpreted Moore, which did not limit its unconstitutionality holding to the Class 4 form of 

AUUW as the majority concluded, but rather “found the statute unenforceable based upon its 

consideration of the elements of the offense.” Id. ¶ 44, 2 N.E.3d 321 (Theis, J., dissenting). 
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¶ 23 As Chief Justice Garman and Justice Theis noted in their respective dissents, and as the 

language of the statute makes clear, subsection (d) of the AUUW statute (720 ILCS 5/24.1(d) 

(West 2010)) is a sentencing provision. In fact, in People v. Zimmerman, 239 Ill. 2d 491, 

500-01, 942 N.E.2d 1228, 1234 (2010), our supreme court specifically held that subsection (d) 

is a sentencing provision. The issue in Zimmerman was whether a defendant’s previous 

adjudication as a delinquent minor for an act that if committed by an adult would be a felony is 

an element of the offense of AUUW or whether it is a sentencing enhancement. Id. at 496-97, 

942 N.E.2d at 1232. The defendant was charged under section 24-1.6(a)(2) of the AUUW 

statute because he was in possession of a firearm in a vehicle and had previously been 

adjudicated delinquent for an offense that, if committed by an adult, would be a felony. Id. at 

493-94, 942 N.E.2d at 1230. 

¶ 24 The Zimmerman court concluded that the prior delinquency adjudication was indeed an 

element of AUUW rather than a sentence-enhancing factor. Id. at 500, 942 N.E.2d at 1234. The 

court stated, “[s]ubsection (a) sets forth the elements of the offense of [AUUW]. In order to 

convict a defendant, the State must prove beyond a reasonable doubt the elements set forth in 

subsection (a)(1) or (a)(2), in addition to one of the nine factors in subsection (a)(3).” Id. at 

499, 942 N.E.2d at 1233. (At the time of Zimmerman’s offense, subsection (a)(3) listed nine 

factors.) The factors enumerated in subsection (a)(3) “transform the crime from ‘simple’ 

unlawful use of a weapon to [AUUW].” Id. “In a separate subsection entitled ‘Sentence,’ 

subsection (d) provides that the offense is a Class 4 felony” and then “lists several factors 

which increase an individual’s sentence for [AUUW] from one classification to a higher 

classification.” Id. at 500, 942 N.E.2d at 1233-34. 

¶ 25 After examining the statute as a whole, the Zimmerman court found “the legislature clearly 

intended subsection (a)(3)(D) to be an element of the offense of [AUUW] rather than a factor 

used to increase a defendant’s sentence.” Id. at 500, 942 N.E.2d at 1234. The court further 

noted, “it would be illogical for the General Assembly to include a sentence-enhancing factor 

in a list with eight other factors which constitute an element of the offense.” Id. Thus, the 

Zimmerman court held that the elements of AUUW are contained in subsection (a), while the 

sentences and sentencing enhancing factors are contained in subsection (d). 

¶ 26 In People v. Campbell, 2013 IL App (4th) 120635, 2 N.E.3d 1249–a decision filed five 

days after Aguilar was modified, and in which we recognized our supreme court’s decision to 

limit its holding to the Class 4 form of AUUW–this court reversed the defendant’s Class 2 

felony conviction for AUUW. The State in Campbell argued that because the defendant was a 

convicted felon, his conviction under section 24-1.6(a)(1), (a)(3)(A) was constitutional. This 

court disagreed and stated: 

 “The State seems to misunderstand the nature of the supreme court’s decision in 

Aguilar. The court in Aguilar did not merely hold that section 24-1.6(1)(a), (a)(3)(A) of 

the Code was unconstitutional as applied in that case–the court held that the statute was 

unconstitutional on its face. [Citation.] ‘A statute is facially unconstitutional if there are 

no circumstances in which it could be validly applied.’ [Citation.] Because section 

24-1.6(a)(1), (a)(3)(A) of the Code is unconstitutional on its face, neither defendant’s 

status as a felon nor any other factor could render his conviction under that provision of 

the [AUUW] statute constitutional.” (Emphasis in original.) Id. ¶ 14, 2 N.E.3d 1249 

(quoting Lucien v. Briley, 213 Ill. 2d 340, 344, 821 N.E.2d 1148, 1150 (2004)). 
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¶ 27 As in Campbell, defendant here was convicted of the Class 2 form of AUUW. Specifically, 

because defendant had a prior felony conviction, the offense of AUUW was elevated to a Class 

2 offense, with the result being defendant would be required to serve a longer prison sentence 

upon his conviction than he would without the prior felony. Also as in Campbell, the State did 

not charge defendant with violating section 24-1.1 of the Criminal Code of 1961 (Code) (720 

ILCS 5/24-1.1 (West 2010)), which prohibits felons from possessing firearms. Rather, the 

State charged defendant with violating section 24-1.6(a)(1), (a)(3)(A) of the AUUW statute 

(720 ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010)), which prohibits the possession of firearms 

under certain circumstances, none of which involve having a prior felony conviction. 

¶ 28 The elements of the offense for both the Class 4 and Class 2 forms of the AUUW statute at 

issue in this case are identical. Under both forms, the State must prove either (1) a defendant 

“[c]arrie[d] on or about his or her person or in any vehicle or concealed on or about his or her 

person except when on his or her land or in his or her abode, legal dwelling, or fixed place of 

business, *** any pistol, revolver, stun gun or taser or other firearm” and (2) “the firearm 

possessed was uncased, loaded and immediately accessible at the time of the offense.” 720 

ILCS 5/24-1.6(a)(1), (a)(3)(A) (West 2010). These are the only two elements the State had to 

prove to obtain a conviction for AUUW in this case. The State was not required to prove 

defendant was a felon. 

¶ 29 As previously noted, defendant was charged by information with violating section 

24-1.6(a)(1), (a)(3)(A) of the AUUW statute. The State further alleged “the defendant has 

previously been convicted of a felony under the laws of the [S]tate of Illinois,” thus enhancing 

the classification of the offense from a Class 4 felony to a Class 2 felony. Pursuant to section 

111-3(c) of the Code of Criminal Procedure of 1963 (725 ILCS 5/111-3(c) (West 2010)), “the 

fact of such prior conviction and the State’s intention to seek an enhanced sentence are not 

elements of the offense and may not be disclosed to the jury during trial.” (Emphasis added.) 

¶ 30 Defendant here asserts his conviction of the “Class 2 form” of AUUW cannot be upheld on 

the basis he was convicted of a different offense than the defendant in Aguilar. He argues 

“[t]he ‘Class 2 form’ of AUUW is simply a harsher punishment for the offense of AUUW, an 

offense that no longer exists” after Aguilar. We agree. Even though the Aguilar court 

“specifically limited” its holding to the Class 4 form of the offense, we cannot see how the 

Class 4 form of the AUUW statute can be unconstitutional on its face, but the Class 2 form is 

not, since both classes of the offense require the State to prove the exact same elements. 

Consistent with our prior decision in Campbell, we find defendant’s conviction for AUUW 

under section 24-1.6(a)(1), (a)(3)(A) is void. Cf. People v. Green, 2014 IL App (4th) 120454, 

¶ 13 (noting, in dicta, that the modified Aguilar did not apply to the Class 2 form of AUUW). 

¶ 31 We acknowledge our sister districts have arrived at a different conclusion. People v. Burns, 

2013 IL App (1st) 120929, 4 N.E.3d 151; People v. Soto, 2014 IL App (1st) 121937, 7 N.E.3d 

823; People v. Moore, 2014 IL App (1st) 110793-B, 8 N.E.3d 1271; People v. Charles, 2014 

IL App (1st) 112869-U; People v. Johnson, 2014 IL App (3d) 120778-U. In these cases, the 

appellate courts held that, based on the specific references to the Class 4 form of the offense in 

the modified Aguilar, the defendants’ Class 2 felony convictions under the AUUW statute 

were not void. We respectfully disagree with their analyses and believe, for the reasons 

identified, constitutional jurisprudence dictates the result we reach here. 
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¶ 32 We therefore vacate defendant’s conviction for AUUW (720 ILCS 5/24-1.6(a)(1), 

(a)(3)(A), (d) (West 2010)). 

¶ 33 B. Prosecutor’s Closing Argument 

¶ 34 Because we vacate defendant’s conviction for AUUW, we need not consider whether he 

was denied a fair trial due to alleged improper remarks made by the prosecutor during closing 

argument. 

¶ 35 III. CONCLUSION 

¶ 36 For the foregoing reasons, we modify our decision upon denial of rehearing and vacate 

defendant’s Class 2 conviction for AUUW (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 

2010)). 

¶ 37 Vacated.